GOVT 2302 The Judiciary
The Courts and Public Policy Whether deliberate or not, the Supreme Court has an impact on public policy. Appointments to the court are often made with this in mind. This is also true for cases brought before the court. Test Case, definition: A dispute arranged with the intent of forcing the Supreme Court to determine the constitutionality of a statute. In a successful case, the courts rule that a statute violates the Constitution and is therefore null and void. Examples:
Plessy v. Ferguson
Brown v. Board of Education
Griswold v. Conn
DC v. Heller Segregated railcars
Segregated schools
Laws banning birth control
gun control laws Tests cases are only successful if the court chooses to hear it and if the composition of the court is amenable to the desired change. They are not always successful. Even if they are, the results can be controversial since the policy was changed by a judicial decision, not legislation. How do these cases, and cases in general, get to
the Supreme Court? The process begins with a trial:
Law Suit
Deliberate Violation of Law
Opportunity Upon conviction, a procedural irregularity may result in an appeal.
An appeal may also emerge from a motion introduced in court to suppress the introduction of evidence or a claim that a statute is unconstitutional. Appellate courts have the first crack at reviewing appeals.
These can emerge from the federal or statecourts. A party who wants the Supreme Court to review a decision of a federal or state court files a "petition for writ of certiorari" in the Supreme Court. Writ of Certiorari:
The writ that the Supreme Court of the United States issues to a lower court to review the lower court's judgment for legal error and review.
Rule of Four
Four members of the Supreme Court must agree to hear a case before it can be heard. Constitutional Issue
Usually they only agree to hear cases that raise an important constitutional issue. Recent issues:
Is a search unreasonable?
Is a punishment cruel and unusual?
What can be patented?
What is speech? Outcomes are based on how the Supreme Court Justices interpret constitutional language, and what role the see the court playing in the policy process. If the case is accepted, briefs are submitted by the petitioner and the respondent. Friend of the court (or Amicus) can
also be submitted by third partiesand interest groups with an interest in the outcome, though are not involved in the specific dispute. Oral Arguments
30 minute (more or less) arguments before the SC on either side of a case. Conference
Meeting after oral arguments which can include a vote for petitioner of respondent Opinion Writing
Majority opinion written by senior justice on majority, or assigned by that justice to another. The Majority Opinion
Contains interpretation of statutory of constitutional law Concurrence
Written by Justices who agree with the outcome of the vote, but not the rationale for it by the majority The Dissent
Written by Justices who voted against the majority. Can provide rationale for future majority decisions: ie., Plessy, Abrams. The battle over control of the Supreme Court is in essence a battle over the interpretation of the Constitution. Supreme Court appointments are often made with the intent of influencing how the Constitution will be interpreted. This is one of the advantages of winning presidential elections. It can be the longest influence that a president can have on government.
Example: W. Bush’s appointment of Roberts and Alito. Historical example:
Early court appointments helped further nationalist aims of the Federalists. This included Adam’s midnight appointments But Presidential influence is limited by composition of the Senate and consequence of lifetime tenure.
Since Justices are not subject to elections, they do not respond to shifts in the elected institutions The Four Horsemen
The members of the court that consistently voted against New Deal legislation. FDR denounced their "horse-and-buggy" definition of interstate commerce. Schechter Poultry Corp.
v. United States
National Industrial Recovery Act was ruled unconstitutional because it gave the President too much lawmaking power. Court Packing
Response to the Four Horsemen. FRD proposed adding 6 new seats to cancel them out, plus two members who occasionally voted with them. The Four Horsemen
Held the balance of power. Switched votes following court packing plan. The New Deal Court
More willing to restrain itself and broadly interpret constitutional language to justify New Deal policies.
Jones and Laughlin Steel Co. v. NLRB
Included a broader definition of “commerce.” Warren Court
Willing to take an activist position to impose civil rights policies on the states.
Civil Rights
Due Process Believed that heightened judicial scrutiny might be appropriate in three types of cases:
1 - those where a law was challenged as a deprivation of a specifically enumerated right (such as a challenge to a law because it denies "freedom of speech," a phrase specifically included in the Bill of Rights);
2 - those where a challenged law made it more difficult to achieve change through normal political processes; and
3 - those where a law impinged on the rights of "discrete and insular minorities." Incorporated many due process rights to the states. Examples of Case:
Brown v. Board of Ed.
Baker v. Carr
Mapp v. Ohio
Griswold v. Conn
Miranda v. Arizona
Engel v. Vitale
Gideon v. Wainwright Topics:
Desegregation
One Person One Vote
Expanded the Exclusionary Rule
Right to Privacy
Self Incrimination
Prayers in Public Schools
Right to Counsel Led to political backlash.
Nixon successfully ran against the “permissive” decisions of the Warren Court in 1968.
Law and Order. Most significant appointment: William Rehnquist as Associate Justice. He would become Chief Justice in 1986. Rehnquist Court
Reaction to Warren.
Previous rulings not overturned, but limited. Ideological divisions
on the current court Conservative Decisions
Restrictions on Standing
Limits on Recognized Rights
Difficult to establish violations of rights
Protective of Police Behavior
More Power sent back to the States Liberal Decisions
Willing to recognize additional rights
Supportive of equal protection claims
rights of criminal defendants
supportive of national power Recent appointments have given the conservatives an opportunity to impact policy
Republican success
in Presidential Elections has led to 6 out of 9 Justices being appointed by R presidents. Increasingly influential ideologically oriented
interest groups
Federalist Society
American Constitution Society Problem:
Should ideological changes be driven by activist decisions? The goal of many conservatives on the court is to roll back the broad interpretation of national power that has developed since the
New Deal. The Constitution in Exile
Some conservatives have a goal of returning the interpretation of the Constitution back to what existed prior to the New Deal. They support reinstating provisions "exiled" from the Constitution. This would mean "reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal. These justices would change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government“ to enforce these laws. Is this best accomplished by aggressive broadly defined decisions, or by slow incremental change? The Current U.S. Supreme Court
Birth Years Included The Conservatives
Scalia, 1936
Thomas, 1948
Roberts, 1955
Alito, 1950 The Liberals
Anthony Kennedy, 1936 Get Kennedy’s vote and you win Scalia and Thomas are considered to be activists willing to quickly and authoritatively overturn New Deal precedence.
Alito and Roberts are considered to be minimalists who share the same goals as the other two, but want to take incremental steps Recent shifts in court rulings: Contractions in affirmative action and the general notion of rights. Parents Involved in Community Schools v. Seattle School District No. 1
Diversity no longer considered to be a compelling public purpose Lily Ledbetter Expansions of reasonable searches Exclusionary Rule limited. Good Faith exceptions allowed.
Miranda Warnings challenged Increased denials of standing Expanded gun rights
DC v. Heller Increased allowances
of religion in public areas Van Orden v. Perry
Religious displays around Texas Capitol OK since they were historically significant. Expansions of state rights
State Sovereign Immunity Alden v. Maine
The Fair Labor Standards Act was found unconstitutional.this time in state court. Maine had sovereign immunity and could not be sued by private parties in their own court. Will Obama’s election
halt this trend? Potential vacancies on the Supreme Court Summary of Judicial Vacancies
The Judiciary
The Courts and Public Policy
Whether deliberate or not, the Supreme Court has an impact on public policy. Appointments to the court are often made with this in mind. This is also true for cases brought before the court.
Test Case, definition: A dispute arranged with the intent of forcing the Supreme Court to determine the constitutionality of a statute.
In a successful case, the courts rule that a statute violates the Constitution and is therefore null and void.
Examples:
Plessy v. Ferguson
Brown v. Board of Education
Griswold v. Conn
DC v. Heller
Segregated railcars
Segregated schools
Laws banning birth control
gun control laws
Tests cases are only successful if the court chooses to hear it and if the composition of the court is amenable to the desired change.
They are not always successful. Even if they are, the results can be controversial since the policy was changed by a judicial decision, not legislation.
How do these cases, and cases in general, get to
the Supreme Court?
The process begins with a trial:
Law Suit
Deliberate Violation of Law
Opportunity
Upon conviction, a procedural irregularity may result in an appeal.
An appeal may also emerge from a motion introduced in court to suppress the introduction of evidence or a claim that a statute is unconstitutional.
Appellate courts have the first crack at reviewing appeals.
These can emerge from the federal or state courts.
A party who wants the Supreme Court to review a decision of a federal or state court files a "petition for writ of certiorari" in the Supreme Court.
Writ of Certiorari:
The writ that the Supreme Court of the United States issues to a lower court to review the lower court's judgment for legal error and review.
Rule of Four
Four members of the Supreme Court must agree to hear a case before it can be heard.
Constitutional Issue
Usually they only agree to hear cases that raise an important constitutional issue.
Recent issues:
Is a search unreasonable?
Is a punishment cruel and unusual?
What can be patented?
What is speech?
Outcomes are based on how the Supreme Court Justices interpret constitutional language, and what role the see the court playing in the policy process.
If the case is accepted, briefs are submitted by the petitioner and the respondent.
Friend of the court (or Amicus) can
also be submitted by third parties and interest groups with an interest in the outcome, though are not involved in the specific dispute.
Oral Arguments
30 minute (more or less) arguments before the SC on either side of a case.
Conference
Meeting after oral arguments which can include a vote for petitioner of respondent
Opinion Writing
Majority opinion written by senior justice on majority, or assigned by that justice to another.
The Majority Opinion
Contains interpretation of statutory of constitutional law
Concurrence
Written by Justices who agree with the outcome of the vote, but not the rationale for it by the majority
The Dissent
Written by Justices who voted against the majority. Can provide rationale for future majority decisions: ie., Plessy, Abrams.
The battle over control of the Supreme Court is in essence a battle over the interpretation of the Constitution.
Supreme Court appointments are often made with the intent of influencing how the Constitution will be interpreted.
This is one of the advantages of winning presidential elections. It can be the longest influence that a president can have on government.
Example: W. Bush’s appointment of Roberts and Alito.
Historical example:
Early court appointments helped further nationalist aims of the Federalists. This included Adam’s midnight appointments
But Presidential influence is limited by composition of the Senate and consequence of lifetime tenure.
Since Justices are not subject to elections, they do not respond to shifts in the elected institutions
The Four Horsemen
The members of the court that consistently voted against New Deal legislation.
FDR denounced their "horse-and-buggy" definition of interstate commerce.
Schechter Poultry Corp.
v. United States
National Industrial Recovery Act was ruled unconstitutional because it gave the President too much lawmaking power.
Court Packing
Response to the Four Horsemen. FRD proposed adding 6 new seats to cancel them out, plus two members who occasionally voted with them.
The Four Horsemen
James Clark McReynolds
George Sutherland
Willis Van Devanter
Pierce Butler
The Three Musketeers
Louis Brandeis
Benjamin Cardozo
Harlan Stone
supported New Deal policies
Charles Evans Hughes
Owen J. Roberts
Held the balance of power. Switched votes following court packing plan.
The New Deal Court
More willing to restrain itself and broadly interpret constitutional language to justify New Deal policies.
Jones and Laughlin Steel Co. v. NLRB
Included a broader definition of “commerce.”
Warren Court
Willing to take an activist position to impose civil rights policies on the states.
Civil Rights
Due Process
Believed that heightened judicial scrutiny might be appropriate in three types of cases:
1 - those where a law was challenged as a deprivation of a specifically enumerated right (such as a challenge to a law because it denies "freedom of speech," a phrase specifically included in the Bill of Rights);
2 - those where a challenged law made it more difficult to achieve change through normal political processes; and
3 - those where a law impinged on the rights of "discrete and insular minorities."
Incorporated many due process rights to the states.
Examples of Case:
Brown v. Board of Ed.
Baker v. Carr
Mapp v. Ohio
Griswold v. Conn
Miranda v. Arizona
Engel v. Vitale
Gideon v. Wainwright
Topics:
Desegregation
One Person One Vote
Expanded the Exclusionary Rule
Right to Privacy
Self Incrimination
Prayers in Public Schools
Right to Counsel
Led to political backlash.
Nixon successfully ran against the “permissive” decisions of the Warren Court in 1968.
Law and Order.
Most significant appointment: William Rehnquist as Associate Justice. He would become Chief Justice in 1986.
Rehnquist Court
Reaction to Warren.
Previous rulings not overturned, but limited.
Ideological divisions
on the current court
Conservative Decisions
Restrictions on Standing
Limits on Recognized Rights
Difficult to establish violations of rights
Protective of Police Behavior
More Power sent back to the States
Liberal Decisions
Willing to recognize additional rights
Supportive of equal protection claims
rights of criminal defendants
supportive of national power
Recent appointments have given the conservatives an opportunity to impact policy
Republican success
in Presidential Elections has led to 6 out of 9 Justices being appointed by R presidents.
Increasingly influential ideologically oriented
interest groups
Federalist Society
American Constitution Society
Problem:
Should ideological changes be driven by activist decisions?
The goal of many conservatives on the court is to roll back the broad interpretation of national power that has developed since the
New Deal.
The Constitution in Exile
Some conservatives have a goal of returning the interpretation of the Constitution back to what existed prior to the New Deal.
They support reinstating provisions "exiled" from the Constitution. This would mean "reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal. These justices would change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government“ to enforce these laws.
Is this best accomplished by aggressive broadly defined decisions, or by slow incremental change?
The Current U.S. Supreme Court
Birth Years Included
The Conservatives
Scalia, 1936
Thomas, 1948
Roberts, 1955
Alito, 1950
The Liberals
Ginsburg, 1933
Breyer, 1938
Stevens, 1920
Sotomayor, 1954 (expected)
The Swing Voter
Anthony Kennedy, 1936
Get Kennedy’s vote and you win
Scalia and Thomas are considered to be activists willing to quickly and authoritatively overturn New Deal precedence.
Alito and Roberts are considered to be minimalists who share the same goals as the other two, but want to take incremental steps
Recent shifts in court rulings:
Contractions in affirmative action and the general notion of rights.
Parents Involved in Community Schools v. Seattle School District No. 1
Diversity no longer considered to be a compelling public purpose
Lily Ledbetter
Expansions of reasonable searches
Exclusionary Rule limited. Good Faith exceptions allowed.
Miranda Warnings challenged
Increased denials of standing
Expanded gun rights
DC v. Heller
Increased allowances
of religion in public areas
Van Orden v. Perry
Religious displays around Texas Capitol OK since they were historically significant.
Expansions of state rights
State Sovereign Immunity
Alden v. Maine
The Fair Labor Standards Act was found unconstitutional. this time in state court. Maine had sovereign immunity and could not be sued by private parties in their own court.
Will Obama’s election
halt this trend?
Potential vacancies on the Supreme Court
Summary of Judicial Vacancies